Archibald v. Timmons CV-04-121-JD 09/13/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Peter E. Archibald, Jr.

v. Civil No. 04-cv-121-JD Opinion No.

Russell M. Timmons and Michael Dumont

O R D E R

Peter E. Archibald, Jr., brings federal civil rights claims

and related state law claims against two Somersworth, New

Hampshire, police officers, Russell M. Timmons and Michael

Dumont, based on their involvement in his arrest following a

visitation dispute between Archibald and his former wife.

Timmons and Dumont move for summary judgment based on qualified

immunity. Archibald objects.

Standard of Review

Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. See Celotex Corp. v. Catrett,

(1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc.,

(1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See i d . at 255.

Under the local rules of this district, a party filing or

objecting to a motion for summary judgment must file an

accompanying properly supported memorandum of law or a statement

explaining why a memorandum is not necessary. LR 7.1(a)(2). In

addition, the supporting memorandum "shall incorporate a short

and concise statement of material facts, supported by appropriate

record citations, as to which [that party] contends" that either

there is no issue to be tried or a genuine factual dispute

exists. LR 7.2(b). The defendants failed to include a properly

supported factual statement in their memorandum, although they

submitted supporting materials. Rather than deny the motion for

failure to comply with the local rule, however, the court will

rely on the factual statement provided by Archibald and will also

consider the materials submitted by all parties.

2 Discussion

Archibald alleges a federal claim of arrest in violation of

the Fourth and Fourteenth Amendments and state law claims of

false arrest and malicious prosecution, arising from his arrest

and prosecution on a charge under New Hampshire Revised Statutes

Annotated ("RSA") § 173-B of violating a protective order. The

defendants, Timmons and Dumont, do not dispute that the mutual

stipulation between Archibald and his former wife, Liisa Reiman,

was not enforceable under RSA 173-B.1 They contend, however,

that they are entitled to qualified immunity as to the federal

claim and statutory immunity as to the state law claims.

I. Qualified Immunity

"Qualified immunity shields an officer from suit when she

makes a decision that, even if constitutionally deficient,

reasonably misapprehends the law governing the circumstances she

confronted." Brosseau v. Haugen, 125 S. C t . 596, 599 (2004).

The First Circuit evaluates qualified immunity in three separate

stages. Torres Rivera v. Calderon Serra,

(1st

Cir. 2005). First, for purposes of summary judgment, the court

must determine whether the facts as alleged and taken in the

1In fact, the defendants characterize Archibald's arrest as "patently unreasonable" but argue that they did not and could not have known that at the time. Def. Mem. at 6.

3 light most favorable to the plaintiff "show that the officer's

conduct violated a constitutional right." Torres-Rivera v.

O'Neill-Cancel,

(1st Cir. 2005). If so, the

court next considers whether the constitutional right asserted

was clearly established at the time of the alleged violation

"such that a reasonable officer would be on notice that his

conduct was unlawful." I d . (internal quotation marks omitted).

If the asserted constitutional right was clearly established, the

court then decides "whether a reasonable officer, similarly

situated, would understand that the challenged conduct violated

the clearly established right at issue."2 I d . (internal quotation

marks omitted).

A. Allegations of an Unconstitutional Arrest

The issues in this case arise from a divorce proceeding and

visitation dispute between Archibald and Reimann. Archibald

alleges that at the time of the events in question he and Reimann

had entered into a temporary stipulation as part of their divorce

proceeding. The stipulation stated in part: "Except for the

purposes of accomplishing visitation, neither party shall have

any contact with the other unless specifically authorized by the

Court." Am. Comp. 5 12.

2The second and third stages are sometimes considered together. See Saucier v. Katz.

, 205 (2001); Burke v. Town of Walpole,

, 77 n.12 (1st Cir. 2005).

4 Archibald further alleges that Reimann called him on April

5, 2001, to attempt to resolve a visitation problem and

threatened that she would call the police to resolve the problem.

Archibald called Reimann back to tell her to stop threatening

him. Reimann then called the Somersworth police to report a

violation of the divorce stipulation.

Based on Reimann's complaint, Dumont applied for a warrant

for Archibald's arrest, charging a violation of RSA 173-B:8.

Archibald alleges that Dumont acted in bad faith in obtaining the

arrest warrant. He contends that Dumont's affidavit in support

of the warrant failed to include material details about the

visitation dispute. He also alleges that Dumont's affidavit does

not state that the divorce stipulation included a protective

order and fails to state what crime Archibald was accused of

committing. Archibald further alleges that Dumont knew that the

justice of the peace who issued the warrant lacked the ability to

evaluate probable cause and would not question him about the

matters stated in the supporting affidavit. Justice of the Peace

Howard Hammond signed the application and the warrant issued the

same day.

After becoming aware of the warrant, Archibald and his

attorney, Robert Zubkus, went to the Somersworth Police Station

the next day, April 6, 2001. Zubkus told the officers at the

station that no protective order pursuant to RSA 173-B or RSA

5 458:16 was in place and that Archibald's call to Reimann was not

a crime. He also pointed out that the police had cited the wrong

statute because RSA 173-B:9 (III) rather than RSA 173-B:8

pertained to a violation of a protective order. Lubkus attempted

to explain to Timmons that "there was no authority under these

circumstances to arrest the Plaintiff for a violation of RSA 173-

B:8 (or 9)." Am. Comp. 5 17. Despite Lubkus's efforts, Timmons

arrested Archibald, and he was prosecuted for violating RSA 173-

B:8. He was found not guilty after a trial on May 8, 2001.

The Fourth Amendment requires that an arrest warrant be

based upon probable cause, "supported by Oath or affirmation,"

which may be satisfied by a police officer's supporting

affidavit. Kalina v. Fletcher,

(1997).

"Probable cause [] exists if the facts and circumstances within

the relevant actors' knowledge and of which they had reasonably

reliable information would suffice to warrant a prudent person in

believing that a person has committed or is about to commit a

crime." Burke,

. An arrest pursuant to a warrant

violates the Fourth Amendment if the application for the warrant

lacked probable cause or if the officer applying for the warrant

intentionally or recklessly omitted material information or

provided false information with reckless disregard for the truth.

I d . at 81.

In the application for the arrest warrant, Dumont stated

6 that Archibald and Reimann had a temporary stipulation from the

Strafford County Superior Court which provided for custody and

visitation with their children. Dumont stated that Archibald

violated a protective order when he failed to comply with the

visitation requirements in the stipulation and in his

interactions with Reimann about that dispute on April 5, 2001.

The application was signed by Justice of the Peace Howard

Hammond. Timmons arrested Archibald pursuant to the warrant.

Violation of a mutual stipulation was not a crime.

Therefore, despite the Dumont's confusion and regardless of

whether his confusion was reasonable, the arrest warrant was not

based upon probable cause that Archibald had committed a crime.

See, e.g., Wilson v. City of Boston, -- F.3d --- ,

, at *7-*8 (1st Cir. Aug. 31, 2005) (discussing Fourth

Amendment requirements). Further, a plaintiff need only make a

colorable claim of a Fourth Amendment violation. Cox v. Hainev,

(1st Cir. 2004). Given the plaintiff-friendly

standard and the defendants' concession that Archibald's arrest

was "patently unreasonable," Archibald has sufficiently shown

that a constitutional violation occurred.

B. Clearly Established Law

At the second stage, the court determines "whether the right

was clearly established at the time of the alleged violation such

7 that a reasonable officer would be on notice that his conduct was

unlawful." Torres Rivera,

. It is beyond dispute

that long before the events in occurred in this case, it was

clearly established that the Fourth Amendment required that an

arrest warrant be issued only upon probable cause to believe that

a crime had been committed. Cox

. Therefore, the

second stage of the analysis is resolved in favor of Archibald.

C. Perspective of Reasonable Officer

In the last part of the qualified immunity analysis, the

court examines the officers' conduct in light of the

circumstances that confronted them to determine "whether it would

be clear to a reasonable officer that his conduct was unlawful in

the situation he confronted." Groh v. Ramirez,

(2004) (internal quotation marks omitted). The analysis turns

from "abstract principles to the specific facts of a given case."

Burke,

(internal quotation marks omitted). The

court must determine whether each officer's mistake as to the

constitutional requirements was reasonable. Id.

1. Officer Dumont.

Officer Dumont's application for the warrant to arrest

Archibald refers to the order issued by the Strafford County

Superior Court as both a temporary stipulation order and a protective order. He states in his affidavit that the dispute

between Archibald and Reimann was the first time he had

encountered the possibility of criminal charges based on

violation of a mutual restraining order that was part of a

marital stipulation. Because he was uncertain as to how he

should proceed, he consulted Sergeant Tim McLin at the station

who suggested that he contact Lieutenant Dan Gagne. McLin talked

to Gagne at his home, and Gagne recommended that they call

Captain Donovan. Dumont drove to Donovan's home and talked with

him about the situation, showing him the stipulation. Donovan

thought that Archibald's call to Reimann about her threat to call

the police was a violation of the mutual restraining order but he

was not sure whether it was an offense under RSA 173-B. Donovan

recommended that Dumont get guidance from the county attorney's

office.

Dumont then called the county attorney's domestic violence

coordinator who contacted the domestic violence prosecutor,

Meegan Lawson. Lawson called Dumont, and he explained the

situation to her and read her the mutual stipulation part of the

superior court order. Lawson first told Dumont that the

situation appeared to be a violation of RSA 633:4 pertaining to

interference with custody that would require further

investigation. She also instructed Dumont to apply for an arrest

warrant for violation of a domestic violence protective order.

9 Dumont began the process of a warrant application using a

computer at the station. He entered the charge Lawson had

approved, and the computer provided the statutory citation, RSA

173-B:8. Dumont then prepared his affidavit and application for

the arrest warrant and presented them to Justice of the Peace

Hammond. Hammond reviewed the materials and approved the

application, issuing the arrest warrant.3 Dumont had no further

involvement in Archibald's arrest.

"[T]he doctrine of qualified immunity provides a safe harbor

for a wide range of mistaken judgments." Hatch v. Dep't for

Children, Youth and Their Families,

(1st Cir.

2001). "An officer is entitled to qualified immunity when his

conduct is objectively reasonable based on the information

available at the time and in light of clearly established law."

Pena-Borrero v. Estremeda,

(1st Cir. 2004). An

officer who prepares a plainly invalid warrant that a reasonably

competent officer would know was deficient, however, is not

entitled to immunity, despite the approval of the warrant by a

magistrate. Groh,

.

Archibald's opinion of Hammond's incompetence is given little weight in the absence of any evidence of bias or incompetence. See United States v. Leon,

(1984). Although Archibald charges that Dumont omitted material information from the warrant application by failing to include a copy of the stipulation, given the undisputed confusion concerning the import of the stipulation, Archibald has not shown that the omission was material.

10 Advice of a prosecutor that probable cause exists to support

an arrest warrant does not guarantee qualified immunity for the

officer. Cox,

. The weight to be given to a pre­

arrest consultation depends on "whether the officer's reliance on

the prosecutor's advice was objectively reasonable."

Objective reasonableness is determined by assessing whether the

officer had reason to believe the advice he was given was not

trustworthy and whether the officer's conduct, such as

withholding material facts, affected that advice. I d . at 35-36.

Dumont's efforts to get help in making a decision about what

action should be taken in response to Reimann's complaint are

important here. Contrary to Archibald's argument, the record

does not show that Dumont omitted material information in his

discussions with his supervisors and with Lawson. The record

also does not show any reason Dumont should not have trusted

Lawson's advice, making his reliance on her advice pertinent to

the qualified immunity analysis.4

Several mistakes led to Dumont's decision to apply for an

arrest warrant in this case. He and others misunderstood the

nature of the temporary stipulation, mistakenly thinking it was a

protective order enforceable under RSA 173-B. The computer

Archibald's opinion about what police officers knew as to the operation of RSA 173-B is not persuasive in light of the affidavits submitted by the county attorneys.

11 provided the wrong statutory reference for a violation of a

protective order. Then, although Dumont apparently believed that

Archibald's call to Heimann was a violation of the stipulation,

he did not clearly state that conduct as the criminal act in his

affidavit.

Taking the circumstances as a whole and giving appropriate

weight to Dumont's consultations with his superiors and Lawson,

the record shows that his actions were neither obviously

inconsistent with Archibald's Fourth Amendment rights nor

objectively unreasonable. See Cox,

. Dumont is

entitled to qualified immunity on the federal claim against him.

2. Officer Timmons.

Officer Timmons arrested Archibald on April 6, 2001, after

Archibald and his attorney, Robert Zubkus, arrived at the

Somersworth Police Station.5 Archibald states in his affidavit

that Zubkus talked with Timmons and the police prosecutor, Brian

Lemoi, about the warrant and told them that they could not

5Timmons did not provide his affidavit in support of the motion for summary judgment. Instead, counsel refers to "two previous affidavits of Russell Timmons" without any indication as to when those affidavits were filed or with which documents or pleadings. The court has located affidavits submitted by Timmons in support of a previous unsuccessful motion and has reviewed them. Counsel would be well advised to provide the court with a complete record to be considered in support of a motion for summary judgment.

12 enforce the civil stipulation in Archibald's and Reimann's

temporary stipulation. He explained that it was not a criminal

matter and urged them to contact the County Attorney, Janice

Rundles, to get her opinion before making an arrest under the

warrant. Lemoi declined to call Rundles.

In the meantime, despite Zubkus's protests, Timmons took

Archibald to the booking area and began the booking process.

Timmons called Lemoi to see if Zubkus had provided any

information that would change their plan to arrest and book

Archibald on the outstanding warrant. Lemoi told Timmons to

continue with the booking procedure. Timmons finished booking

Archibald at noon, and Archibald appeared before Judge Coolidge

for arraignment and bail immediately after lunch.

"When officers make an arrest subject to a warrant, then,

even if probable cause is lacking, officers are entitled to

qualified immunity unless the warrant application is so lacking

in indicia of probable cause as to render official belief in its

existence unreasonable." Abreu-Guzman v. Ford,

(1st Cir. 2001) (internal quotation marks and footnote omitted);

accord Burke,

; see also Simms v. Village of

Albion,

(2d Cir. 1997). Archibald argues

that Timmons acted unreasonably because he was on notice that the

13 warrant was invalid once Zubkus pointed out its defects.6 An

arresting officer, however, is not obligated to accept arguments

made by a suspect's lawyer. Morrell v. Mock,

(7th Cir. 2001). Archibald also argues that Timmons should have

further investigated the legal requirements of the statute cited

in the warrant. Absent proof of the invalidity of the warrant,

an officer executing an arrest warrant "'is not required by the

Constitution to investigate independently every claim of

innocence . . . . Pena-Borrero v. Estremeda,

(1st Cir. 2004) (quoting Baker v. McCollan,

(1979)).

Therefore, based on the record presented for summary

judgment, Timmons is entitled to qualified immunity from

liability for arresting Archibald pursuant to the arrest warrant.

II. Supplemental Jurisdiction

With this decision, all of Archibald's federal claims have

been resolved against him. Subject matter jurisdiction in this

6The mis-cited statute did not make the warrant facially invalid. Mere typographical or clerical errors do not render a warrant invalid. See, e.g.. Groh.

; Wilkes v. Young,

, 1364 n.l (4th Cir. 1994). In contrast, substantive errors or omissions, such as failure to list persons or items to be seized or a lack of an oath or affirmation to support probable cause, make the warrant plainly defective. See Groh,

; United states v. Vargas-Amava,

(9th Cir. 2004) .

14 case is based on the existence of a federal question. See

& § 1367(a). Because Archibald's federal claims

are now either dismissed by stipulation or resolved in favor of

the defendants by summary judgment, the court declines to excise

supplemental jurisdiction over Archibald's state law claims. See

§ 1367(c)(3); Gonzalez-De-Blasini v. Family Dep't, 3

(1st Cir. 2004).

Conclusion

For the foregoing reasons, the defendants' motion for

summary judgment (document no. 27) is granted, which resolves the

remaining federal claims in favor of the defendants. The

plaintiff's state law claims are dismissed without prejudice.

The clerk of court shall enter judgment accordingly and close the

case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

September 13, 2005

cc: John A. Curran, Esquire Kenneth D. Murphy, Esquire

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